Mark Walsh is a contributing writer to Education Week. He has covered legal issues in education for more than two decades. He writes about school-related cases in the U.S. Supreme Court and in lower courts.

Court Invalidates Backpack Search by School Resource Officer

A school resource officer did not have probable cause to search a student's backpack and, thus, an air pistol that turned up had to be suppressed in a criminal proceeding, Washington state's highest court has ruled.

The Washington Supreme Court ruled 7-2 that the school resource officer was not a school official and thus the more lenient standard of "reasonable suspicion" applied to searches by school personnel did not apply.

The Aug. 2 ruling in Washington v. Meneese stems from a February 2009 incident at Robinswood High School in Bellevue, Wash. School Resource Officer Michael Fry, of the Bellevue police department, spotted a student in a school restroom holding a bag of marijuana. Fry took the student, Jamar B.D. Meneese, to a school office where he placed him under arrest and handcuffed him. Fry then opened and searched the student's locked backpack, which contained an air pistol.

Meneese, who was evidently an adult at the time, was convicted in a state trial court of possession of less than 40 grams of marijuana and unlawfully carrying a dangerous weapon at school. The student challenged the weapons charge based on the officer's alleged lack of probable cause to search his backpack. Under relevant case law, the officer would have had to have a warrant to open the locked bag absent the "school exception," or reasonable suspicion standard.

Lower courts rejected the argument, but in its decision this week, the Washington Supreme Court sided with the student. The majority said there where overwhelming indications that Fry was acting as a law enforcement officer, not a school official, in conducting the search.

"Fry's job ... concern[s] the discovery and prevention of crime, and he has no authority to discipline students," said the majority opinion by Justice Susan Owens. "He is a uniformed police officer who responds to, and addresses, incidents occurring on school grounds. Moreover, his role as SRO does not exempt him from other police duties as he can still be called upon to answer police matters unrelated to the school."

This is in contrast to searches conducted by school administrators. The underlying rationale for applying the lesser standard of reasonable suspicion is that "teachers and administrators have a substantial interest 'in maintaining discipline in the classroom and on school grounds' that often requires swift action," the state high court said, quoting the U.S. Supreme Court's 1985 decision in New Jersey v. T.L.O.

The Washington Supreme Court majority noted that its decision ran counter to rulings in several other states that have treated school resource officers as school officials and have not required probable cause for their searches.

But the Washington court said several factors required its own ruling, including language in the Washington state constitution that provides stronger protections from illegal searches than that of the U.S. Constitution's Fourth Amendment. And the specific facts of this case supported the probable cause requirement, as Officer Fry was not trying to further school discipline because he had already placed Meneese under arrest when he conducted the backpack search.

"There was no chance for swift and informal school discipline and further searching primarily promoted criminal prosecution, not education," the majority said.

Writing for the dissenters, Justice Debra L. Stephens said the school search exception should apply to a search by a school resource officer "so long as it is related to school policy and not merely a subterfuge for unrelated law enforcement activities. This is the view of the overwhelming majority of jurisdictions to have considered the issue."

"Schools will now be dissuaded from using SROs to detect and intercept violations of school rules or the law," Stephens said. "Instead, teachers and other school administrators who have reasonable suspicion, but lack probable cause, must conduct such searches themselves. The Constitution does not demand such foolhardiness, nor is it necessarily conducive to respect for student privacy."

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